Balchunas v. Alitalia-Linee Aeree Italiane-Societa Per Azioni

May 15, 2007
Versions:40 A.D.3d 789
836 N.Y.S.2d 647

In an action to recover damages for deceptive business practices and false advertising, the defendant appeals from an order of the Supreme Court, Orange County (Owen, J.), dated July 19, 2006, which denied that branch of its motion pursuant to CPLR 317 which was to vacate a judgment entered upon its default in answering and, in effect, denied, as academic, that branch of its motion which was to dismiss the amended complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Ordered that the order is reversed, on the law, with costs, that branch of the defendant’s motion which was to vacate the judgment entered upon its default in answering is granted, and the matter is remitted to the Supreme Court, Orange County, for a determination on the merits of the remaining branch of the defendant’s motion.

The Supreme Court should have granted that branch of the defendant’s motion which was to vacate the default judgment pursuant to CPLR 317 because the defendant demonstrated that it did not receive notice of the amended summons in time to defend, there is no evidence that the defendant deliberately tried to avoid notice, and the defendant has a potentially meritorious defense (see CPLR 317; Tselikman v Marvin Ct., Inc., 33 AD3d 908 [2006]; Franklin v 172 Aububon Corp., 32 AD3d 454, 455 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 411 [2006]; Marinoff v Natty Realty Corp., 17 AD3d 412, 413 [2005]).

In light of the foregoing, we remit the matter to the Supreme Court, Orange County, for a determination on the merits of the remaining branch of the defendant’s motion. Mastro, J.P., Ritter, Skelos, Carni and McCarthy, JJ., concur.